Section 293 of the Criminal Code of Canada provides that polygamy is an indictable offence. In a recent reference to the Supreme Court of British Colombia, the court held that this section was constitutionally valid and did not infringe upon religious freedom because of the harm polygamous marriages caused to women, children, society and most importantly, “the institution of monogamous marriage”. This paper will revisit the court’s analysis of polygamy and discuss why it was considered harmful and preserved as a criminal act. The paper will canvas the underlying differences between the roles ascribed to marriage in Islam, as an example of a non-Western religio-legal tradition, and the collective liberal West. Ultimately, the paper will consider whether a balance can be struck between the measures required to protect women and children from harm, and preserving religious freedom, while remaining within the bounds of the Canadian Charter of Rights and Freedoms.

Section 293 of the Criminal Code of Canada provides that polygamy is an indictable offence. In a recent reference to the Supreme Court of British Colombia, the court held that this section was constitutionally valid and did not infringe upon religious freedom because of the harm polygamous marriages caused to women, children, society and most importantly, “the institution of monogamous marriage”. This paper will revisit the court’s analysis of polygamy and discuss why it was considered harmful and preserved as a criminal act. The paper will canvas the underlying differences between the roles ascribed to marriage in Islam, as an example of a non-Western religio-legal tradition, and the collective liberal West. Ultimately, the paper will consider whether a balance can be struck between the measures required to protect women and children from harm, and preserving religious freedom, while remaining within the bounds of the Canadian Charter of Rights and Freedoms.